Himachal Pradesh High Court
State Of Himachal Pradesh vs Pawan Kumar R on 7 January, 2015
Bench: Hon’Ble Mr. Karol, Hon’Ble Mr. Rana
    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA


                                    Criminal Appeal No. 436 of 2009




                                                                        .

                                    Judgment reserved on : 31.12.2014

                                    Date of Decision : January 7 , 2015





    State of Himachal Pradesh                                       ...Appellant





                                    Versus

    Pawan Kumar        r                                            ...Respondent

    Coram:
    The Hon'ble Mr. Justice Sanjay Karol, Judge
    The Hon'ble Mr. Justice, P.S. Rana, Judge.


    Whether approved for reporting? No.    1




    For the appellant          :   Mr. V. S. Chauhan, Addl. Advocate General and




                                   Mr. Vikram Thakur, Dy. A.G. for the appellant-
                                   State.





    For the respondent         :   Mr. N. K. Thakur, Sr. Advocate, with Mr. Rohit
                                   Bharoll, Advocate, for the respondent.





    Sanjay Karol, J.

Assailing the judgment dated 24.8.2009, passed by learned Addl. Sessions Judge, Una, District Una, H.P., in Sessions Case No. 4/2009 (Sessions Trial No. 4/2009), titled as State of H.P. vs. Pawan Kumar, whereby respondent-

Whether reporters of Local Papers may be allowed to see the judgment?

accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

.

2. It is the case of prosecution that accused Pawan Kumar was married to Parveen Kumari (deceased). On 10.11.2008, deceased consumed poison and died at her matrimonial house in village Chak. The matter was immediately reported to the police. On the basis of statement of Prem Lata (PW-1) so recorded under Section 154 Cr. P.C. (Ext. PW-1/A), F.I.R. No. 232/2008, dated 11.11.2008 (Ext. PW 10/A), was registered at Police Station Amb, Distt. Una (H.P.), under the provisions of Sections 498Aand 306 of the Indian Penal Code, against the accused. Investigation was conducted by Dy.SP Surinder Sharma (PW-11) who after preparing inquest report (Ext.PW-7/B) sent the dead body for post-mortem which was so conducted by Dr. Nikhil (PW-7), who on the basis of report of the Sate Forensic Science Laboratory Junga (Ext.PW-7/C), issued port mortem report (Ext. PW-7/D), opining the deceased to have died on account of chemical poisoning. Investigation revealed that accused had subjected the deceased to cruelty and coerced and abetted her to commit suicide. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

3. Accused was charged for having committed .

offences punishable under the provisions of Sections 498-A302 and 306 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

4. In order to prove its case, in all, prosecution examined eleven witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused.

5. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offences. Hence, the present appeal by the State.

6. We have heard Mr. V. S. Chauhan, learned Addl.

Advocate General assisted by Mr. Vikram Thakur, learned Dy. Advocate General on behalf of the State as also Mr. N. K. Thakur, learned Senior Advocate assisted by Mr. Rohit Bharoll, learned Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record.

.

There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution.

Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences.

8. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:

“(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in – ‘Sheo Swarup v. Emperor‘, AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:

Sections 417418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code .

and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the rwitnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.” “

9. It has come on record that the parties were married 12 years prior to the occurrence of the incident.

That death took place in the matrimonial house is also not in dispute.

10. From the testimony of Dr. Nikhil (PW-7), who proved on record the post mortem report (Ext. PW-7/D), it is evidently clear that the deceased could have died either on account of ante-mortem physical injuries or by poisoning or even by consequential effect of both.

Undisputedly injuries were found on the body of the deceased which could have been fatal. But significantly, Doctor also opines that if a person, in a state of sub-

consciousness, falls on a hard object, injuries found on the body of the deceased could be caused. Doctor could not .

state with certainty as to whether deceased consumed poison or sustained injuries first.

11. Ram Parkash (PW-3) is a witness to recovery of eight tablets of aluminum phosphide from the room of the deceased.

12. Law with regard to cruelty as defined under Section 498-A of the Indian Penal Code and abetment to commit suicide, so as to fall within the scope of Section 306 of the Indian Penal Code is now well settled.

13. It is a settled position of law that there should be reasonable nexus between cruelty and suicide. It has to be substantiated, established and proved on record. Cruelty by itself would not amount to having committed an offence punishable under Section 498-A IPC. A reasonable nexus has to be established between cruelty and the suicide in order to make good the offence of cruelty under the penal laws. Cruelty has to be of such a gravity as is likely to drive a woman to commit suicide. Suicide alone would not establish that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. Mere assumption or demand of dowry by itself in given circumstances may not amount to cruelty. The harassment .

has to be with a definite object i.e. to meet any unlawful demand. Every act of cruelty is not punishable. There must be evidence to show that soon before the death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of natural or accidental death so as to prove that the death had occurred otherwise than in normal circumstances. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.

14. In Girdhar Shankar Tawade vs. State of Maharashtra (2002) 5 SCC 177, the Apex Court has held that “the basic purport of the statutory provision is to avoid ‘cruelty’ which stands defined by attributing a specific statutory meaning attached thereto. In order to ascribe a meaning to the word ‘cruelty’ as is expressed by the Legislatures: Whereas explanation (a) involves three specific situations viz , (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is .

absence of physical injury but the Legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury whereas one is patent, the other one is latent but equally serious in terms of the provisions of the r to statute since the same would also embrace the attributes of ‘cruelty’ in terms of section 498 (A).” …. …. ….

“Section 498-A is attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman Admittedly, the finding of the trial court as regards the death negated suicide with a positive finding of accidental death. If suicide is left out, then in that event question of applicability of explanation (a) would not arise – neither the second limb to cause injury and danger to life or limb or health would be attracted in any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under section 498 (A) and not de-hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under section 498-A.

Explanation (b) of Section 498-A in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand – there is total absence of any of the requirements of the statute in terms of section .

              498 (A)." .....     .....   ......





                ...    ...     "Charges under sections 306 and 498-A

of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other.”

“To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under section 498-A The legislative intent is clear enough to indicate in particular reference to explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of explanation (b) The letters by itself though may depict a reprehensible conduct, would not however, bring home the charge of section 498-A against the accused Acquittal of a charge under section 306, as noticed hereinbefore, though not by itself a ground for acquittal under section 498-A, but some cogent evidence is required to bring home the charge of section 498-A as well, without which the charge cannot be said to be maintained.”

15. In Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618, the Apex Court has also held thatSections 498-A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under section 498- A and may also, if a course of conduct, amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide.

However, merely because an accused has been held liable .

to be punished under section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned.

16. In Sushil Kumar Sharma. Vs. Union of India & Ors.

(2005) 6 SCC 281, the Apex Court has held as under:

“10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short “CrPC“) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.

11. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two sections i.e. Section 306 and Section 498-A is that of intention. Under the latter, cruelty committed .

by the husband or his relations drag the woman concerned to commit suicide, while under the former provision suicide is abetted and intended.

19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial.

Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well- intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. If the cry of “wolf is made too often as a prank, assistance and protection may not be available when the actual “wolf appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish .

the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalised a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”

17. In State of West Bengal Vs. Orilal Jaiswal (1994) 1 SCC 73, the Apex Court has held as under:

“In a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of S. 498AI.P.C and S. 113A of Indian Evidence Act. Although, the court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts .

about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. The doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter.

The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.”

[Emphasis supplied]

18. In the very same decision the Apex Court further cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the .

evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

19. In Arun Vyas & anr. Vs. Anita Vyas (1999) 4 SCC 690, the Apex Court has held that the essence of offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the wife is subjected to cruelty, she would have a new starting point of limitation.

20. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies .

from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not. [Mohd. Hoshan A.P. &

21.

r to Anrs. Vs. State of A.P. (2002) 7 SCC 414].

In State of A.P. Vs. M. Madhusudhan Rao (2008) 15 SCC 582, the Apex Court has held as under:

“It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State, is attracted in the instant case, every harassment does not amount to “cruelty” within the meaning of Section 498-A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not “cruelty” and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to “cruelty” punishable under Section 498-A I.P.C.”

22. In Balram Prasad Agrawal Vs. State of Bihar & Ors. (1997) 9 SCC 338, the Apex Court has held cruelty to mean torture to be so unbearable in the common course of .

human conduct that a young lady having commitments to life could take a drastic steps to end her life leaving behind her infant children in the lurch and at the mercy of the accused husband who was found to be in contemplation of remarrying.

23. In Arvind Singh Vs. State of Bihar (2001) 6 SCC 407, the Apex Court has held as under:-

“The word ‘cruelty’ in common English acceptation denotes a state of conduct which is painful and distressing to another. The legislative intent in Section 498-A is clear enough to indicate that in the event of there being a state of conduct by the husband to the wife or by any relative of the husband which can be attributed to be painful or distressing.

The same would be within the meaning of the section. Torture is a question of fact. There must be a proper effort to prove it.”

24. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The accused must by his acts or omission or by a continued course of conduct create such circumstances that the .

deceased is left with no other option except to commit suicide in which case an instigation may have been inferred.

A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. [Ramesh Kumar vs. State of

25. to Chhatisgarh, (2001) 9 SCC 618] The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. [Gananath Pattnaik vs. State of Orissa, (2002) 2 SCC 619]

26. Prosecution evidence has to be appreciated in the backdrop of the aforesaid legal position.

27. From the testimony of the Investigating Officer Dy.S.P. Surinder Sharma (PW-11) it is evidently clear that he never received any complaint on behalf of the deceased, nor was such complaint ever written to the Panchayat. Also no weapon of offence was found on the spot.

28. Testimony of pradhan Raj Pal (PW-4) is also to the effect that no complaint, oral or written, against the accused, attributing maltreatment or harassment was ever .

received by the panchayat.

29. What we further find in the instant case is that all the independent witnesses, including close relatives of the deceased have not supported the prosecution; they were declared hostile and despite extensive cross examination by the public prosecutor, nothing fruitful could be elicited from their testimonies.

30. Prem Lata (PW-1) is the sister-in-law (bhabhi) of the deceased. She simply states that parties were married 12 years prior to the incident. On the fateful day, accused left for Panjawar to open an account. Deceased came, inquired about her husband and also left for Panjawar. In the afternoon accused telephonically informed that he would be going to Delhi and deceased be taken to her parental house as she was bothering him. Well that is all she states and nothing more. She was declared hostile and nothing fruitful could be elicited from her testimony. In her uncorroborated testimony she states that deceased would often and freely visit her parental house and also participate in all the functions and ceremonies. In fact, on 7.11.2008, just three days prior to the incident, deceased had attended one such ceremony in the village. She clarifies that on the asking of villagers she had filed the complainant.

.

31. Darshan Singh (PW-2), another relative of the deceased, only states that he telephonically learnt about the death of the deceased. He admits that deceased used to live separately from her in-laws; was in visiting terms and never complained about any maltreatment on the hands of the accused. r

32. Even Saroj Kumari (PW-5), younger sister of the deceased has not stated anything against the accused. She states that the deceased, who on 9.11.2008 had come to her parental house returned in the evening. Following morning deceased informed that she would go to Panjawar for opening an account. What happened thereafter she does not know, save and except that she was telephonically informed of the deceased having consumed poison. Witness was declared hostile and despite cross examination nothing fruitful could be elicited from her testimony. However, from her uncontroverted testimony, she admits that on 7th November, 2008 deceased participated in a function and on 8th November had brought her children to the parental house. Deceased never complained of anymaltreatment/harassment meted out at the hands of the accused.

33. To us it appears to be a case of no evidence.

.

Deceased never complained of any acts of maltreatment/cruelty. She was happy and participated in public functions. Yet never made any grievance about the conduct of the accused to any person. Thus, having perused the testimonies of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, that accused subjected the deceased to cruelty or committed her murder or abetted her to commit suicide, by leading clear, cogent, convincing and reliable material on record. It cannot be said that findings returned by court below are not borne out from the record, are perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence.

34. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, since it cannot be said that the trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid .

of merit, is dismissed, so also pending applications, if any.

Bail bonds, if any, furnished by the accused are discharged.

Records of the Court below be immediately sent back.

(Sanjay Karol), Judge.

                   r                                ( P. S. Rana ),

                                                        Judge.
    January   7 , 2015 (PK)

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